Pinney and another against Wells, 10 Conn. 104

Williams, J. Upon a bill in chancery, the plaintiffs claim the aid of this court to give them the benefit of a hen for freight of certain coal and grindstones, in their possession, assigned by Collins Co. to the defendant, under a contract *nade by the plain tiffs, with Collins Co. It is not claimed, that a comt of equity would interpose where there was no lien at law : ('2 Meriv. 403.) but that having parted with the possession under an arrangement with the defendant, this court should give them the benefit of that arrangement.

The general rules of the common law respecting this subject of lien, are now well settled. In consideration of the liability imposed upon persons conducting certain business, or engaged in certain trades, or on account of the usage of trade, the law recognizes a right in those whose services or expenditures have contributed to enhance the value of the property of others in their hands, to retain possession of that property, until compensation has been made for that labour and those expenses. This right or privilege, called a lien, is for the benefit of trade.

In consideration of the nature of the services and liabilities of the common carrier, he is as justly entitled to the benefit of such lien as any class of persons whatever. The plaintiffs found their claim upon the rights of common carriers. But it is claimed by the defendant, that they have entered into a special contract, which deprives them of that right. As this privilege was intended for the security of him who performed the services or incurred the expenses, such person may always waive it, or deprive himself of the benefit, which the law indulged him with.

As this benefit was particularly designed for those with whom no particular contract was made, who reposed merely upon their legal rights, an opinion seems formerly to have been entertained, by authorities highly respectable, that wherever there was a special contract between the parties, no lien could exist. That doctrine was examined and denied, by the court of King's Bench, in a modern case, and in an elaborate opinion given by Lord Ellenborough, it was proved to be contrary to reason and to the principles of law. Chase v. Westmore, 5 Mau. & Selw. 180. 183. &. seq.

See also the cases collected and well arranged, by the American editor of Yelverton's Reports, p. 67. a. n. And the rule may now be considered a& settled, that a lien may exist, although there is a special contract, unless there is something in that 'contract inconsistent with such hen, or unless it is waived expressly, or by fair implication. Thus, in Cowell v.

Simpson, 16 Ves. 275. 280. where a solicitor took the notes of the executor of his employer, payable in three years, it was held, that by necessary implication, be agreed to give up the papers and rely upon the security; and the Lord Chancellor said, that if a lien commenced under an implied contract, and afterwards a special contract was made for payment, in the nature of the thing, one contract destroys the other.

So where the defendant agreed to transport salt from Turk's Island to New- York, 500 dollars to be paid in advance, the balance in three equal payments at 30, 60 and 90 days after its arrival in New- York ; 500 dollars having been paid, the defendant claimed a lien for the balance of freight. But the court decided, that this right growing out of the usage of trade, did not exist, and could not be enforced, where the parties had expressly regulated the time and manner of paying freight, by stipulation in a charter-party ; especially, if the cargo is to be delivered before the period of payment arrives.

Such an agreement, it was said by Ch. J. Spencer, was an express renunciation of the right to insist on freight before the cargo was delivered. Chandler & al. v. Belden, 18 Johns. Hep. 157. 162. The same principle is recognized in Crawshay & al. v. Homfray & al. 4 Barn. & Ald. 50. (6 Serg. Lowb. 346.) And in Raitt v. Mitchell & al. 4 Campb. 149. Lord Ellenborough says, a lien is wholly inconsistent with a dealing on credit, and can only subsist where payment is to be made in ready money, or there is a bargain that security shall be given the moment the work is completed.

And this principle is recognized by Chancellor Kent. 2 Kent's Com. 635. 1st ed. This principie has also been extended to cases where there was no express agreement to give credit, but where, by the usage of trade, a credit might be claimed. Thus in Raitt v. Mitchell & al. 4 Campb. 146. a ship was taken to a dock to repair, and great expenses incurred, by the ship-wright; it being proved, that by usage the ship owner might demand a credit, it was held, that there was no lien.

So where goods were landed upon a wharf in October, and by usage, wharfage was not payable until Christmas, it was held, that, there could be no lien. Crawshay & al. v. Homfray & al. above cited. The question between these parties, then, depends less upon doubtful questions of law, than upon the application of princi-pies that are well settled. Are the terms of the contract between Pinney & Co. and Collins f Co. inconsistent with the-claim of lien now made by the former?

This contract is dated the 1st of May, 1833, and was to be completed by the 1st of March, 1834 ; although, as the bill states, it was the expectation of the parties, that it should be so completed by the 1st of November, 1833.

The plaintiffs undertake to transport a quantity of grindstones from New-Haven to Collinsville, and coal from Bristol or Philadelphia to New-Haven, Avon and Collinsville ; both to be landed at Avon, and carted to Collinsville ; some of the coal to be delivered at Collinsville, by the 15th of June, then next, and the residue so that not less than 50 tons should be at Collins-ville on hand, at all times after, until the whole was delivered ; and the grindstones to be delivered so fast that no inconveniences should be sustained from the delay ; both to be weighed at Collinsville, and the coal to be by the plaintiffs shovelled down into the coal-house.

The Collinses, on their part, agree to pay the sums fixed for transportation, and at the settlement, an interest computation is to be made, in which the freight to Avon is to be considered as cash, when 100 tons arrive there, and the freight from Avon to Collinsville as cash, whenever 100 tons arrive there. But instead of paying cash, Collins &p Co. are to have the privilege of giving their notes at the Hartford Bank, at 4 and 3 months ; the plaintiffs having a right to call for such note, when 100 tons are landed at Avon, or carted to Collinsville.

The plaintiffs, then, instead of relying upon their legal security, explicitly agreed to go on with this contract, and land at least 100 tons at Avon, or the like quantity deliver at Collins-ville, before they could demand any pay ; and then, instead of requiring what their lien would entitle them to, they agree to take Collins dp Co’s, note at 4 months, until August, and then at 3 months; and so far as it respects the coal at Collins-ville, it is expressly to be placed out of their controul, in Collins Co.’s coal-house, before the note could be required.

It is said, however, that these notes Collins &p Co. have liberty to give, but they are considered as cash by the parties : it is only a. privilege to Collins ép Co. But it is the ordinary privilege to a man in business of substituting credit for cash, enhanced perhaps from the fact, that Collins Sp Co. had their election ; but as it was at their election, and not at the plaintiffs’ pleasure, it is apparent, that the lien was lost sight of, The privilege of a credit to the owner seems inconsistent with the idea of the privilege of a lien in the carrier.

The plaintiffs further claim, that they had, at least, a lien for Collins {y Co.’s notes, when IDO tons were delivered at Avon, or at Collinsville. As to the latter, it is entirely inconsistent with the idea, that the coal was actually to be delivered by them in the coal-house ; and without deciding whether when one hundred tons were landed at Avon, they were bound to do more, unless Collins éy Co. would give their note, it does not seem therefore to follow, that this contract was not substantially a contract upon which they agreed to give Collins dr Co. a credit.

Collins éy Co. were not, indeed, bound to accept the credit, to the extent allowed; and if they refused to give their note, it might be said, they did not choose to accept the credit. But the plaintiffs, by the contract, having left it at the option of Collins &y Co., must have waived the benefit of their hen; otherwise, instead of the certain privilege given them by law, they have a privilege, depending, not on the law, but on the will of the opposite party.

Again, it is said by the plaintiffs, that this contract is entire, although to be performed at different times; and that a lien may exist upon the part not delivered for that which had been delivered.

Upon examining this contract, it appears, that as it respects the grindstones, they were to be delivered at Collinsville, as fast as the convenience of Collins 6y Co. required ; and after the 15th of June, the plaintiffs were always to have at Collins-ville 50 tons of coal, at least, on hand, beyond that used, Under these stipulations, it can hardly be believed, that it was contemplated, that the plaintiffs should retain enough in theif possession to secure them for the transportation of the whole.

Nor are any data given to shew how many tons of coal would be necessary to keep the manufactory at work, and leave the requisite quantity with the plaintiffs ; nor was there any limitation imposed upon Collins <!y Co. as to the quantity they would consume, unless it is to be conjectured from the fact, that all was to be delivered by the 1st of March, 1834. That, however, must, when construed with the other parts of the contract, be understood to mean nothing more than that, whether the coal and grindstones were wanted or not, all - should be delivered by that time.

But if the plaintiffs went on to deliver 100 tons, by the 15th of June, and received their note for that quantity, payable at four months, and then went on with the rapidity in fulfilling this contract, which they, in their bill, say was expected, and which they say would have been performed during the month of the ensuing October, it is apparent, that most of the coal, &c. must have been delivered before the first note would have become due, viz. the 18th of October ; and at all events, a very small part of the freight money could have been due, at the time when the parties expected, that all this contract, on the part of the plaintiffs, would have been completed.

Under these circumstances, it seems to me apparent, that this contract is utterly inconsistent with a right of lien in the plaintiffs. Besides this, the contract provides, that if breaches shall happen in the canal, so as to render it impracticable for the plaintiffs to get up the coal, Collins Sf Co. may, if they choose, get it round by Connecticut river. In that view, what becomes of the lien of the plaintiffs ? In every view, then, which can be taken of it, it seems, that the plaintiffs have relied upon the personal credit of Collins <$f Co., and abandoned their claim of lien.

It was however further urged, by the plaintiffs, that the insolvency of the Collinses, might make a difference. Such claims are seldom made, and seem to be of no use, unless insolvency has intervened. If, therefore, that fact varied the right of the parties, it would seem as if the cases would shew it. No such cases have ever been shewn. But it is claimed in analogy to the cases of stopping in tran-situ. Those cases exist only between vendor and vendee; and certainly do not depend upon retaining possession. The very terms imply, that possession has been given up.

Here, the lien, where it exists at all, depends upon the possession. There, insolvency only gives the right. Here, the right certainly does not arise from insolvency, but exists as completely, where the owner of the goods is a Girard, as where he is a bankrupt. Besides, if the analogy is pursued, it might extend further than would be consistent with the plaintiffs’ claims ; as in that case, after an assignment made bona fide, the right would no longer exist. But it is believed, there is no analogy , , ° the cases. ⅛ the two cases above cited of Crawshay & al. v. Homfray & al. and Chandler v.

Belden, insolvency had intervened, but did not revive the lien. If the foregoing reasoning is correct, here never was any original lien : of course, there was none to revive; and subsequent events could not create one. It being settled, that the terms of this contract, by reasonable implication, excluded the lien which the law would have raised, I know of no principle of law, certainly no case has been presented, which proves, that such a lien can afterwards arise.

The same answer may be given to the plaintiffs’ claim, that they may retain for the freight of the goods on hand, when they stopped the further transportation. If by the contract originally made, they waived any claim for freight, and instead of leaving their payment to the implication of law, they contracted to give a credit for the freight, then whether they had parted with possession or retained it, they must look only to the contract they had entered into, for their security.

Such being the situation of the plaintiffs, as it respects Collins Sf Co., they can claim nothing more of the defendant, unless he has assumed a new responsibility by his letters, which form a part of the case. That has not been seriously contended. It is enough to remark upon that correspondence, that as the plaintiffs did not intend to give up any right or obligation, by the delivery of the coal, so neither did the defendant intend to assume any other liability than that by law before imposed upon him.

And it cannot be necessary to examine this correspondence minutely, to declare, that he has not assumed such responsibility, but that the parties are, in that respect, in no better and in no worse situation, than they would have been, had the correspondence never existed. I should, therefore, advise the superior court, that the plaintiffs can take nothing by their bill. The other Judges were of the same opinion, except Peters, J., who was absent. Bill to be dismissed.